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September 30, 2002


The opinion of the court was delivered by: Swain, District Judge.


Plaintiff Michael Mack ("Plaintiff") alleges that defendants The Port Authority of New York and New Jersey ("Port Authority") and Dr. Scott Bergman ("Dr.Bergman"*fn1) (collectively, "Defendants") created a hostile work environment and subjected him to disparate treatment in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. He seeks damages pursuant to 42 U.S.C. § 1983 for alleged mental distress and economic loss. Plaintiff also alleges that Defendants' actions constituted intentional racial discrimination and wanton disregard of his civil rights, and seeks compensatory and punitive damages pursuant to 42 U.S.C. § 1981. In addition, based on the same set of factual allegations, Plaintiff seeks damages pursuant to New York Executive Law section 296, et seq.*fn2 Plaintiff, whose employment with the Port Authority was terminated, also seeks reinstatement. The Court has federal question jurisdiction of Plaintiffs section 1983 and 1981 claims. See 28 U.S.C.A. § 1331 (West 1993). Defendants have moved for summary judgment.

For the reasons that follow, Defendants' motion is granted.


The following facts are undisputed. Plaintiff is African-American. (Compl. ¶ 1.) The Port Authority is a bi-state agency created by a compact between the states of New York and New Jersey. (Id. ¶ 4.) Plaintiff commenced employment with the Port Authority in 1984. (Defs.' Mem. Supp. Summ. J. ("Defs.' Br.") at 7; Mack Aff. ¶ 4.) In 1986, Plaintiff became a Tunnel and Bridge Agent at the Holland Tunnel. (Mack Aff. ¶ 4.) One of Plaintiffs jobs in this position involved driving a wrecking truck, which required a commercial driver's license. (Defs.' Br. at 7; Tr. 5/31/2000 Mack Dep. at 64.) From 1986 through 1998, in addition to his position as a Tunnel and Bridge Agent, Plaintiff voluntarily rotated assignments, working as a stock keeper at various Port Authority sites, including La Guardia Airport, Kennedy Airport, and the World Trade Center. (Mack Aff. ¶ 5.)

Plaintiff alleges that, while he worked on the World Trade Center stockroom assignment, his supervisor, Paul Iannacone ("Iannacone"), harassed him. (Mack Aff. ¶ 6.) Plaintiff alleges generally that Iannacone made offensive racial jokes, referred to Plaintiff as "boy," and said that Plaintiff was there to "appease" him. (Mack Aff. ¶ 6.) The only specific instance of racial joking identified by Plaintiff is that Iannacone allegedly made jokes about O.J. Simpson during the O.J. Simpson trial. Plaintiff generally asserts that "Whatever was going on in the media at the time, if it concerned a black person, they [sic] were jokes." (Tr. 6/27/2000 Mack Dep. at 245.) Plaintiff also asserts that Iannacone targeted non-white employees, including Plaintiff, for petty criticism, and assigned the most onerous tasks to them. (Mack Aff. ¶ 6.) The only specific instance of such alleged disparate assignments identified by Plaintiff is that, after the 1993 terrorist bombing at the World Trade Center, Iannacone scheduled non-white employees to work the night shift without the possibility of overtime, but scheduled white employees to work daytime shifts with the possibility of overtime. (Id. ¶ 6.) Plaintiff filed a complaint about Iannacone's alleged harassment with the Port Authority's Office of Equal Opportunity ("OEO") in 1996. (Id. ¶ 6.) At his deposition, Plaintiff testified that the OEO complaint concerned "[t]he way [Iannacone] spoke to me," differences in work assignments, being given shorter lunch breaks than Iannacone, Iannacone's criticism of Plaintiffs work performance as inconsistent with that of others ("maybe [that Plaintiff did not do the work in the same fashion as] a white employee") and, possibly, "a time when [Iannacone] said to me that I must appease him." (Tr. 5/31/2000 Mack Dep. at 88-89, 94.)*fn3 Plaintiff asserts that the Port Authority did not take any action against Iannacone. (Id. ¶ 6.) Plaintiff alleges that, as a result of Iannacone's conduct, he suffered stress and depression, for which he was treated by a Port Authority psychiatrist on a weekly basis for one month. (Id. ¶ 6.)

In January 1998, Plaintiff was promoted to the position of Senior Stock Keeper and assigned to the World Trade Center stock room. (Id. ¶ 7.) Plaintiff alleges that Iannacone supervised Plaintiff from time to time and continued to harass him, by paying "special attention" to him and calling him a "good boy" every time he finished a task, citing Plaintiff and other non-white employees for returning later from breaks while white employees often came back late from breaks but were not reprimanded, "constantly" accusing Plaintiff and other non-white employees of "poor performance," and always sa[ying] he [Iannacone] needed to be appeased. (Id. ¶ 7; Tr. 5/31/2000 Mack. Dep. at 245.)

Port Authority employees who maintain a commercial driver's licenses are required to submit to random drug tests under the Omnibus Transportation Testing Act of 1991. On July 6, 1996, Plaintiff was tested for drugs and tested positive for cocaine. (8/9/96 Notice to Discipline, Ex. D. to Defs.' Notice of Mot.) Because he tested positive, the Port Authority informed Plaintiff that he would be terminated. (Id.)

The Transport Workers' Union negotiated a disciplinary waiver agreement for Plaintiff on August 9, 1996. (8/9/96 Disciplinary Waiver Agreement, Ex. E to Defs.' Notice of Mot.) The agreement provided that Plaintiff would submit to random drug testing for a period of sixty (60) months and enter a drug rehabilitation program. (Id.) The agreement also provided that, if Plaintiff tested positive again, he would be subject to administrative action. (Id.) In addition, the agreement provided that Plaintiff would attend psychological counseling sessions. Plaintiff was referred to Bergman, a clinical psychologist at the Port Authority's Office of Medical Services. (Mack Aff. ¶ 8.)*fn4

Plaintiff alleges that Bergman was cold and disdainful toward him because Plaintiff is African-American. Plaintiff asserts that he felt that Bergman provided no meaningful counseling because the sessions generally lasted no more that five minutes and Bergman would only make "small talk" with him. (Id. ¶ 9.)

On November 10, 1997, Plaintiff again tested positive for cocaine. (Tr. 6/27/2000 Mack Dep. at 185.) The Port Authority notified Plaintiff that his employment would be terminated on November 17, 1997, as a consequence of the positive drug test. (11/17/97 Notice of Intention to Discipline, Ex. F. to Defs.' Notice of Mot.) Plaintiff entered into another disciplinary waiver agreement negotiated by his union, in which he agreed to random drug testing for sixty (60) months and to cooperate with the Port Authority's Office of Medical Services. The agreement provided that failure to meet these obligations could result in termination and that one positive test result would result in his termination. (11/17/1997 Settlement Agreement, Ex. G. to Defs.' Notice of Mot.)

Plaintiff alleges that Dr. Bergman stated that the "only person with a temperature like [Mack's sample] is either dead or an animal." (Mack Aff. ¶ 13.) Plaintiff was incensed by Dr. Bergman's remark and allegedly told him that he "was not willing to participate in any further test" until he spoke with his union representative, Steve Picone ("Picone"). (Id.) Dr. Bergman allegedly informed Plaintiff that, if he left the Office of Medical Services without providing another sample, there would be "trouble." (Id.; cf. Medical Dep't Chart Summary, Ex. I. to Defs.' Notice of Mot.) While there is some dispute as to the particulars of the parties' verbal interaction, it is undisputed that Plaintiff left the Medical Services office without providing an additional sample. (See, e.g., Mack Aff. at ¶¶ 13, 14, 16.) Plaintiff returned to his work area and called Picone. (Mack Aff. ¶ 13, Tr. 5/31/2000 Mack Dep. at 145.) After speaking with Picone, Plaintiffs stock room supervisor told Plaintiff that he had to leave the building (Mack Aff. 14; Tr. 5/31/2000 Mack Dep. at 146) because he refused to provide a second urine sample. (Defs.' Br. at 10.) Port Authority security personnel then escorted Plaintiff out of the building. (Mack Aff. ¶ 14.) Plaintiff received a notice of termination the next day (May 7, 1998) based on his failure to provide a second urine specimen. (Id. ¶ 15; 5/7/98 Port Authority Letter to Mack, Ex. K to Defs.' Notice of Mot.)

Plaintiff asserts that the alleged harassment by Iannacone and the alleged disdainful treatment by Dr. Bergman, as well as Dr. Bergman's alleged comment about the temperature of Plaintiffs May 6, 1998 urine sample and request for a second sample, and the subsequent termination of his employment, were racially motivated. Defendants seek summary judgment, asserting that any cause of action based on alleged 1996 or earlier conduct of Iannacone is time-barred, that the conduct of Iannacone and Dr. Bergman was not sufficiently severe and pervasive to support a hostile work environment claim, that Plaintiffs termination was legitimately based on his failure to cooperate in accordance with the disciplinary waiver agreement, and that Dr. Bergman is entitled to qualified immunity.


Summary Judgment Standard

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The trial court must view the record in the light most favorable to the non-moving party and resolve all uncertainties and draw all reasonable inferences against the moving party. Hill v. Taconic Dev. Disabilities Services Office, 181 F. Supp.2d 303, 316 (S.D.N.Y. 2002) (citing Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996)). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001); Hill, 181 F. Supp.2d. at 316; Turner v. Nat'l R.R. Passenger Corp., 181 F. Supp.2d 122, 126 (N.D.N.Y. 2002)." Affidavits and depoitions must be scrutinized for circumstantial evidence which, if believed, would show discrimination." Turner, 181 F. Supp.2d at 127 (citing Gallo v. ...

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